Only "Pending" False Claims Act Actions Bar Later-Filed Qui Tam Suits

When Congress enacted the first-to-file bar, within the False Claims Act, 31 U.S.C. 3730(b)(5), it provided for jurisdiction only to the first qui tam action to raise specific allegations. In doing so, Congress sought to preclude a flood of duplicitous lawsuits. Unfortunately, some courts have misread the statutory text of the first-to-file bar, thus erroneously precluding actionable qui tam suits.

The most common mistake involves courts overlooking the “pending” language found in 31 U.S.C. 3730 (b)(5). The False Claims Act only bars qui tam actions when a separate, related qui tam case, based on the same facts, is still “pending.” By removing “pending” from the first-to-file bar, courts have permitted previously dismissed, barebones allegations to derailed later-file meritorious suits.